M.A.B. v. State ( 2007 )

PER CURIAM.

M.A.B. challenges his adjudications of delinquency for grand theft of a motor vehicle and burglary of a conveyance. M.A.B. argues that his postarrest statements should have been suppressed because the Miranda¹ warnings he received failed to inform him of his right to have an attorney present during questioning. M.A.B. also argues that he did not knowingly and voluntarily waive his Miranda rights.

Prior to the issuance of a panel decision, the court on its own motion, pursuant to Florida Rule of Appellate Procedure 9.331(a) and (c), by majority vote ordered en banc consideration with respect to this case on the ground that the case is of exceptional importance. Upon en banc consideration, the court is evenly divided concerning the disposition of the appeal, Judges Altenbernd, Whatley, Stringer, Davis, Kelly, Canady, and Villanti voting to affirm and Judges Fulmer, Northcutt, Casanueva, Salcines, Silberman, Wallace, and LaRose voting to reverse. Pursuant to rule 9.331(a), the adjudications are affirmed.

We certify pursuant to article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) that the following question upon which this decision passes is one of great public importance²:

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

FULMER, C.J, and ALTENBERND, WHATLEY, NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, CANADY, KELLY, VILLANTI, WALLACE, and LaROSE, JJ., Concur.

CANADY, J., Concurs with opinion, in which ALTENBERND, WHATLEY, STRINGER, DAVIS, KELLY, and VIL-LANTI, JJ., Concur.

WALLACE, J., Dissents with opinion, in which FULMER, C.J., and LaROSE, J., Concur, and in which NORTHCUTT, J., Concurs in part.

LaROSE, J., Dissents with opinion, in which FULMER, C.J., NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur.

NORTHCUTT, J., Dissents with opinion.

CASANUEVA, J., Dissents with opinion, in which NORTHCUTT, SALCINES, and SILBERMAN, JJ., Concur.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . In Spence v. Hughes, 500 So.2d 538 (Fla.1987), the supreme court considered a certified question of great public importance with respect to a decision of an equally divided court.